THERESA FERGUSON et al. v. STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1232-04T11232-04T1

THERESA FERGUSON and JAMES

FERSUSON,

Plaintiffs-Appellants,

v.

STATE OF NEW JERSEY, DEPARTMENT

OF CORRECTIONS, JACK TERHUNE,

Commissioner, STATE PAROLE BOARD,

ANDREW B. CONSOVOY, Commissioner,

ROBERT M. EGLES, Executive

Director, SOUTHERN STATE

CORRECTIONAL FACILITY, MICHAEL R.

McKEEN, KAREN BALICKI, SUSAN

HUNTER, NICHOLAS MELFI, DARLEEN

ARCHER, GARY SCHNEIDER, ALBERT

WAGNER and WILLIAM SCHMIDT,

Bergen County Prosecutor,

Defendants-Respondents,

and

CORRECTIONAL MEDICAL SERVICES OF

ST. LOUIS, CORRECTIONAL MEDICAL

SERVICES, COUNTY OF BERGEN and

RAYMOND ALVES,

Defendants.

_________________________________________________

 

Submitted November 30, 2005 - Decided February 15, 2006

Before Judges Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

L-2003-02.

Vivino & Vivino, attorneys for appellants

(Raymond S. Vivino, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondents (Michael J. Haas, Assistant

Attorney General, of counsel; Karen L. Jordan,

Deputy Attorney General, on the brief).

PER CURIAM

Plaintiffs Theresa Ferguson and her husband, James Ferguson, appeal from a summary judgment dismissing their complaint. We now affirm.

In 1976, Theresa Ferguson was brutally attacked by an individual, Raymond Alves, who was convicted of that attack in 1977. Alves was also convicted of a sexual attack on a different victim in Bergen County. He received an aggregate prison term of forty-seven years for both offenses. Ferguson attended Alves's parole hearings in the 1990's. Although Alves was paroled once in 1992, he was reincarcerated shortly thereafter as a result of a violation of the terms of his parole.

This action arises out of Alves's release on parole on March 9, 2000. Plaintiff contends that she did not receive the required 30 days' notice of his release, citing N.J.S.A. 30:4-123.53a. The letter notification of Alves's impending release, provided by the Department of Corrections (DOC) and addressed to the Bergen County Prosecutor, was dated February 29, 2000. It was not received by the prosecutor's office until March 10, one day after Alves's release. A representative of the Office of Victim and Witness Advocacy had, however, notified plaintiff on February 28 that Alves would soon be released.

Plaintiff contends that as a result of her failure to receive notice, as well as the State's failure to proceed for civil commitment before his release, she has suffered the severe physical, mental, and emotional injury characteristic of post-traumatic stress disorder, including dangerous weight loss, depression, and attempted suicide.

Upon his release on parole, Alves traveled out of state for twelve days, and was taken into custody on March 21, 2000 for failure to register under Megan's Law. N.J.S.A. 2C:7-2. He was subsequently civilly committed under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -34. At no time during his brief release did Alves contact plaintiff.

Plaintiff's amended complaint names as defendants not only the State and the DOC, but also DOC employees and psychologists engaged by the DOC as independent contractors to conduct psychological assessments of Alves. Plaintiff alleges negligence on the part of some or all of the defendants (1) for failure to provide thirty days' notice of Alves's intended release, citing N.J.S.A. 30:4-123.53; (2) for failure to insure Alves's registration as a sexually violent predator; and (3) for failure to properly assess or report or interpret assessments of Alves's psychological condition. Judge Daniel Mecca granted summary judgment dismissing all of plaintiff's claims on the basis of immunity under the Tort Claims Act, as well as for lack of sufficient evidence of proximate cause.

It is plain, as the judge found, that there is immunity under the Tort Claims Act for all of plaintiff's negligence claims. See N.J.S.A. 59:2-4 and 59:3-5 (immunity for failure to enforce the law), 59:5-2 (immunity for release of a prisoner), 59:6-6 (determination whether to confine an individual for mental illness); see also Alston v. City of Camden, 168 N.J. 170, 185 (2001) (stating that a party must make a showing that is "'much more' than mere negligence" to prove willful misconduct (quoting Fielder v. Stonack, 141 N.J. 101, 124 (1995))); Snyder v. Am. Ass'n of Blood Banks, 144 N.J. 269, 298 (1996) (noting that private associations have been granted qualified immunity when they perform quasi-governmental functions at the behest of the government); Bombace v. City of Newark, 125 N.J. 361, 370 (1991) (finding that a public official is entitled to absolute immunity under the Tort Claims Act for failing to enforce the law, even when the public official would otherwise enjoy qualified immunity for related conduct that constitutes an action); Vanchieri v. N.J. Sports and Exposition Auth., 104 N.J. 80, 86 (1986) (finding that the immunity enjoyed by a public entity extends to a contractor that performs work in accordance with plans and specifications provided by the public entity); Ziemba v. Riverview Med. Ctr., 275 N.J. Super. 293, 294-303 (App. Div. 1994) (reversing the denial of summary judgment in favor of a hospital and its personnel who were involved in the involuntary commitment of the plaintiff on the ground that the defendants were entitled to immunity for their actions); Coppola v. State, 177 N.J. Super. 37, 39-40 (App. Div.), certif. denied, 87 N.J. 398 (1981) (holding that the Tort Claims Act provides absolute immunity for public entities for the release of prisoners).

It is also plain that there is no private cause of action implied by N.J.S.A. 30:4-123.53b for failure to give timely notice of a prisoner's release. Finally, as the judge concluded, there is no support in the record for plaintiff's contention that some or all of the defendants' conduct amounted to wanton and willful misconduct for which the individual defendants would not have immunity. See N.J.S.A. 59:3-14.

 
We affirm substantially for the reasons set forth by Judge Mecca in his well-reasoned oral opinion of October 8, 2004.

Defendant Balicki's name is incorrectly spelled "Bilicki" in plaintiff's amended complaint.

Defendant Melfi's is incorrectly spelled "Malfi" in plaintiff's amended complaint.

As James Ferguson's claims are solely derivative, we refer in the balance of this opinion to Theresa Ferguson as "plaintiff" in the singular.

The attack on plaintiff was violent but was not a sexual attack.

Plaintiff's amended complaint also includes two counts against Alves, one count alleging damages resulting from the 1976 attack and one count alleging damages resulting from his release in 2002. The record does not reveal the disposition of those counts.

(continued)

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A-1232-04T1

February 15, 2006